129 Me. 407 | Me. | 1930
These three cases, which are writs of entry, involve the same facts, and are reported to this court for final determination on so much of the evidence as is legally admissible. From this evidence the following facts appear:
In 1850 James Deering was the owner of a large tract of land in what is now a growing and populous part of the City of Portland. In that year the York and Cumberland Rail Road Company, which subsequently became the Portland & Rochester Railroad Company, acquired under the terms of its charter by condemnation a right of way six rods wide through the Deering land. One rod of this was subsequently reconveyed so that the width of the way as finally used by the railroad was eighty-two and one-half feet. In 1886 the heirs of James Deering, then owning the land on each side of this right of way, conveyed to Carrie A. Nutter a piece of land on the westerly side of it described as follows:
“A certain lot of land situated on the Northerly side of Noyes Street in said Deering and described as follows viz., beginning at the corner formed by the intersection of the Northerly side line of said Noyes Street with the Northerly side line of Longfellow Street; thence Westerly by said Longfellow Street sixty (60) feet to a point; thence Northerly on a line at right angles to said Longfellow Street two hundred and seventeen (217) feet and .95 of a foot more or less to the location of the Portland and Rochester Railroad; thence Southeasterly by said location two hundred and ten (210) feet more or less to said Noyes Street; thence Westerly by*409 said Noyes street, ninety eight (98) feet more or less to the corner begun at. For a more particular description reference may be had to a plan in the possession of the said Grantors.”
This lot of land, through various conveyances and devises, and through descent, is now owned by the plaintiffs. The area on the other side of the railroad location opposite this lot between the railroad and Forest Avenue, being a piece varying in width from one hundred and thirty-nine to one hundred and fifty-four feet, was held by the Deering heirs until 1894, when it was conveyed to Arthur E. Marks. The northerly and westerly bounds of this land were described in the deed as follows:
“thence westerly on a line parallel with Noyes Street one hundred and thirty-nine (139) feet more or less, to the location of the Portland and Rochester Railroad Company; thence Southerly by said location two hundred and sixty (260) feet more or less to said Noyes Street.”
It will be seen from these two deeds therefore that the Deering heirs, owning the fee in the railroad right of way and in the land on both sides of it, conveyed the area first on the westerly side, and eight years later that on-the easterly side, describing both of such lots as running “to” and “by” the railroad location.
In 1911 the Portland & Rochester Railroad abandoned its right of way, and in 1922 the Deering heirs by three warranty deeds conveyed to the predecessors in title of the defendants in these actions the area comprising such location between the lots previously conveyed to Carrie A. Nutter and to Arthur E. Marks.
These suits are brought to recover the westerly half of such railroad location in so far as it abutted the property now owned by the plaintiffs, whose claim is that the deed to Carrie A. Nutter conveyed to her the fee to the center of the railroad propertv and that on the abandonment of this they became possessed of this land free from the encumbrance of the railroad right of way. The defendants claim through the deed from the Deering heirs, their contention being that title to the fee in this strip was retained by the grantors when the land on each side of it was conveyed.
The question here presented has never come before the courts of
The contention of counsel for the plaintiffs is that a railroad right of way is a highway and that the same rule which applies in the case of land bounded on a highway should apply to that adjoining a railroad. This well established principle is that a conveyance of land bounded on a highway, the fee of which is owned by the grantor, carries title to the center of it unless a contrary intent appears. Oxton v. Groves, 68 Me., 371; Low v. Tibbetts, 72 Me., 92; 4 R. C. L., 78. A glance at the reasons for this rule will perhaps indicate how far it is applicable to land abutting on a railroad.
The procedure for the location of highways is now largely governed by statute. In early times they were ordinarily created by a dedication express or implied by the owner of the land through which they ran. British Museum v. Finnis, 5 C. & P., 460. However created, the right given was ordinarily an easement. The public had the right of p.assage, but title to the soil was retained by the original owner. Peck v. Smith, 1 Conn., 103; Webber v. Eastern Railroad Company, 2 Met., 147, 151; Burr v. Stevens, 90 Me., 500. It is true that the grant of this easement carried with-it all the incidents necessary to make the enjoyment of the public right effective, not only with reference to the amount and methods of travel in vogue at the time of the grant, but with respect to such as an advancing civilization might indicate were reasonable and proper. Milhau v. Sharp, 15 Barb., 193, 210; Burr v. Stevens, supra. The ownership of the fee in the highway in early times, when the means of travel were primitive, was of distinct benefit to the owner of the adjoining land, and today even with the enlargement of the public right, this claim to the freehold is of advantage to the abutting property holder. Thus the proprietor of the soil in the highway had the right to the grass along its untravelled border,
Courts have attempted to justify the presumption that title to land bounded on a highway extends to the center of the way on the theory that the grantor could not have intended to retain the ownership in a long narrow strip of land of no apparent benefit to himself. This is undoubtedly a consideration which should be given weight, but looking at the principle in its early origin, it seems to be of even greater moment that the grantor should not be presumed to retain for himself that which is of distinct benefit to his grantee in connection with the proper use and enjoyment of the estate conveyed.
An almost perfect analogy with the rule as to highways is that governing the boundaries of land on non-navigable streams. The title to land so bounded extends to the thread of the stream unless a contrary intent appears. Lincoln v. Wilder, 29 Me., 169; Bradford v. Cressey, 45 Me., 9; Wilson v. Harrisburg, 107 Me., 207. This was the rule in England as far back as the time of Lord Hale and was brought by the colonists to New England as a part of the common law. The riparian proprietor owns the bed of the stream and all but the public right of passage. Pearson v. Rolfe, 76 Me., 380. As he could take herbage from the highway for his cattle, so he may take water from the stream, Blanchard v. Baker, 8 Me., 253, 266; as he could use the land under the highway so long as the public right of passage was not affected, so may he use the bed of the river. Carleton v. Cleveland, 112 Me., 310. He is entitled to
A similar situation exists in the case of the title to tidewater flats between high and low water mark. Originally these belonged to the crown, but under the provisions of the Colonial Ordinance of Massachusetts, 1641-47, it was declared “that in all creeks, coves, and other places, about and upon salt water, where the sea ebbs and flows, the proprietor of the land adjoining shall have propriety to the low water mark, where the sea doth not ebb above one hundred rods, and not more wheresoever it ebbs further.” As in the case of the soil comprising the highway, and of the land forming the bed of the stream, the ownership of the flats was of paramount importance to the proprietor of the uplands above the sea, and in accordance with the rule followed in the other two instances, a conveyance of the uplands is construed to include such flats unless a contrary intent appears. Whitmore v. Brown, 100 Me., 410.
In all three of these cases, the principles of which have been a part of the common law, this court has endeavored merely to give effect to the real intention of the parties. It has gone no farther than that, and has sought to establish no arbitrary rule on supposed grounds of public policy. It is merely adopting a general principle, which is based on the well-known rule of construction that the circumstances and situation of the parties shall be considered in determining the meaning of the language used by them.
In Bradford v. Cressey, supra, the court, after showing that the rule with respect to streams and highways is the same and in holding that a bound by the west bank of a stream excludes the stream, says at page 13: “The intention of the party is always to be sought in the interpretation of deeds, as in other written instruments. If the language leaves that intention at all doubtful, the instrument should be examined and construed, when practicable, by the light of the circumstances which surrounded and were connected with the execution of the instrument.”
In Crocker v. Cotting, 166 Mass., 183, 185, Judge Holmes says : “The rule by which the mention of a way as a boundary in a conveyance of land is presumed to mean the middle of the way, if the way belongs to the grantor, is not an absolute rule of law irrespective of manifest intention, like the rule in Shelley’s case, but is merely a principle of interpretation adopted for the purpose of finding out the true meaning of the words used.”
In Vanderbilt University v. Williams, 152 Tenn., 664, the court found sufficient evidence of intention to exclude the highway. One important factor in the case was that the distances, which were short and given with extreme accuracy, carried only to the exterior lines of the way. In discussing the ordinary presumption that arises with respect to land bounded on a highway the Court said at page 669: “But over all runs the rule requiring effect to be given to the intent of the parties.”
The following are to the same effect as the above cases: Winslow v. Allen, 48 Me., 249; Hamlin v. Pairpoint Manufacturing Co., 141 Mass., 51; Hamlin v. Attorney General, 195 Mass., 309; The Boston Five Cent Savings Bank v. Massachusetts General Hospital et als, 255 Mass., 583; In re Parkway, Woolf v. Pierce, 209 N. Y., 344; Warden v. South Pasadena Realty Co., 178 Cal., 440; Watson v. New York, 73 N. Y. S., 1027, affirmed 175 N. Y., 475; Wood v. Culhane (Mass., 1929), 164 N. E., 622; Hughes v. Providence & Worcester Railroad Co., 2 R. I., 508; Buck v. Squiers, 22 Vt., 484.
The language of Justice Taft, while a Circuit Judge, illustrates this point of view. In the case of Paine v. Consumers Forwarding & Storage Co., 71 Fed., 626, he said at page 632: “The evils resulting from the retention in remote dedicators of the fee in gores and strips, which for many years are valueless because of the public easement in them, and which then become valuable by reason of an abandonment of the public use, have led courts to strained constructions to include the fee of such gores and strips in deeds of the abutting lots. And modern decisions are even more radical in this regard than the older cases.” That case was, however, merely one which involved the application of the ordinary presumption recognized in Maine and in all other jurisdictions that a conveyance of land bounded on a highway includes the fee to the center of the way, and the language of the court should not be considered as applying to any other state of facts.
The Pennsylvania cases, though they hold, contrary to the general weight of authority, that land bounded specifically by the side line of a street extends to the center, base their decisions on what they claim to be the real intention of the parties. The court lays more stress on the surrounding circumstances than on the language used in determining what that intention is.
The majority and minority opinions in the case of Buck v. Squiers, supra, show very clearly the divergent views of those who base this boundary rale on the intention of the parties and of those who find its justification in reasons of public policy. In this case a conveyance bounded land by the easterly side of a road and the northerly side of a stream and the court held that the exterior .lines marked the boundaries. The majority opinion held that it was the intention of the parties that governed, with the burden on the
If the rule is founded on considerations of expediency to prevent title to small remnants of land being left in remote grantors, there would seem to be no reason why it should not apply as well to land bounded on private ways as on public ones. Yet Maine has not so extended its application. Bangor House v. Brown, 33 Me., 309; Palmer v. Dougherty, 33 Me., 502; Ames v. Hilton, 70 Me., 36; Winslow v. Reed, 89 Me., 67; Coleman v. Lord, 96 Me., 192; Young v. Braman, 105 Me., 494. These cases are an indication of the hesitancy of this court to establish an arbitrary rule of construction not founded on a real intent. This rule has been followed in Connecticut. Seery v. City of Waterbury, 82 Conn., 567. Chief Justice Baldwin in this case said at page 571: “There is here no statute or judicial precedent which governs, nor any general custom of which we can take judicial notice. The question is one, also, not settled by the common law. It is therefore our duty to answer it by the choice of the rule which, in our judgment, is best calculated to do justice in cases of this character. This we have done. We adopt that which does not raise, in case of a boundary on a private way, the presumption which obtains in case of one on a highway. By that rule, because it is (or by our adoption of it becomes for Connecticut) the rule of justice, it may fairly be assumed prima facie that the parties to such a transaction intended to be governed, by force of the words which they employed.”
In Center Bridge Co. v. Wheeler & Howes Co., 86 Conn., 585, the- court holds squarely that a railway right of way is analogous in all respects to a public highway in that it has permanence and is used by the public in distinction from the use made of a private way; and the court therefore concludes that exactly the same presumption applies as in the case of the highway.
To the same effect are the following: Rice v. Clear Spring Coal Company, 186 Pa., St. 49; Roxana Petroleum Corporation v. Sutter, (C. C. A. 8th Cir.), 28 Fed. 2ds, 159; Roxana Petroleum Corporation v. Jarvis, 127 Kan., 365.
There are dicta in two Vermont cases which likewise support the plaintiff’s contention. Maynard v. Weeks, 41 Vt., 617; Church v. Stiles, 59 Vt., 642.
Counsel cites three decisions from South Carolina, Wright v. Willoughby, 79 S. C., 438; Foster v. Foster, 81 S. C., 307; Boney v. Cornwell, 117 S. C., 426. In the first two of these cases the court recognizes a distinction between the case where land is bounded by a railroad and that where it is bounded by land occupied as a railroad, and holds that in the former instance the right of way to the center is included, in the latter case that is not. In Foster v. Foster, supra, the Court says at page 312: “if it had been the intention to reserve the land occupied by the railroad, the boundary should, and'doubtless would, have been given as the land so occupied. When it was in fact given as the railroad itself, the conveyance covered all the land, including that occupied as a right of way, to the center of the railroad track.” This distinction seems to be in accord with the language used by Judge Gray in Boston v. Richardson, 13 Allen, 146, at page 154. It appears to have been overlooked in the third case of Boney v. Cornwell.
When we consider the real origin of the highway rule, that it had its foundation in the early customs of the people which gave to the abutting property owner, having title to the fee in the highway, certain rights in the highway of real advantage to him in the daily use of his adjoining land, we can see very little analogy between his situation and that of the owner of land bordering on a railroad right of way. The land owner beside the railroad has no use whatsoever of the railroad way. In fact he is absolutely excluded from it. The use of it by the railroad is altogether inconsistent with the idea that it could in any way be of advantage to his adjoining land. It is quite true that a railroad way is often referred to as a public highway. This designation has reference to the fact that it is open to the public for travel under the restrictions imposed by law; but it has never been considered that, for this reason, it has the other incidents of a public highway. This court has very clearly pointed out this distinction in Hayden v. Shillings, 78 Me., 413, 416, when it said: “It follows that the easement in lands taken for the purpose of a railroad is obviously vastly different from that in lands appropriated to the various kinds of other public ways.” The court then indicates clearly what these differences are, one of which is that the railroad must have the exclusive occúpation and control of its property without any interference by the adjoining land owner.
Nor does the fact that the Portland & Rochester Railroad under its charter held its right of way “as lands taken and appropriated for public highways” in any way alter the case. The legislature by this language did not mean to imply that its right of way was in all respects similar to a highway, but merely that it held it as an easement devoted to the public use in distinction from an ownership in fee.
The only analogy which we can see between the railroad right of way and the highway is that in both cases the grantor, if he retains the fee in such a way, may own a long narrow strip of land which may not be of any great value to him. To hold that because of that fact he must be presumed to have conveyed the fee in that strip
In Thompson v. Hickman, 1907, 1 Ch., 550, 556, is found the following statement of the court: “I am, however, asked to hold that, where land on either side of a railway line is granted, the minerals underlying the railway line pass, unless they have been previously vested in the railway company, and I am asked so to hold on the analogy of the presumption which obtains in the case of land bounded by highways. I cannot come to the conclusion that I should be right in acting upon any such presumption, which, so far as I know, is wholly unknown to the law at the present time. I think the very different circumstances under which railways came into existence and those in which watercourses and highways came into existence are sufficient to shew that the presumption does not apply to the case of a railway.”
In Couch v. Texas Pacific Railway Co., 99 Texas, 464, 467, the Supreme Court of Texas said: “The right of way of a railroad is not a public highway in the sense of a public road or street, and the rule of construction which applies to a deed for land bounded by a public highway does not apply in this case so as to make the deed convey land not included in its terms.”
Not only can we see no reason which compels us, because of analogy, to extend the highway rule to railroad rights of way, but there are cogent reasons why this should not be done. The instant case is a striking example that considerations of public policy cut both ways. In reliance on the usual and ordinary rules of construction, the defendants in this case accepted deeds from the sup
Plaintiffs’ counsel contends that the words “railroad location” designate a monument as the boundary, such as a tree, a ditch, a stake and stones, or a wall, and that the lines as in the case of such other monuments extend to the center of it. This argument presupposes as a fact the very thing that we are here attempting to decide — whether the parties so intended to designate it. Such intention, as we have stated, is not to be presumed. The fact that the distances given by the grantors in their deed are set out with great particularity and extend the bounds to the side lines of the railroad location is a consideration of great importance. The westerly bound of the lot conveyed in this deed is described as follows: “Thence northerly on a line at right angles to said Longfellow
It is our opinion that the language used by the parties clearly excluded the railroad right of way. To hold otherwise would do violence to accepted rules for the interpretation of deeds. The entry must therefore be in each case
Judgment for the defendants.